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09/30/87 the People of the State of v. Leslie Bennett Et Al.

September 30, 1987





515 N.E.2d 840, 162 Ill. App. 3d 36, 113 Ill. Dec. 855 1987.IL.1461

Appeal from the Circuit Court of Cook County; the Hon. George M. Marovich, Judge, presiding.


PRESIDING JUSTICE SULLIVAN delivered the opinion of the court. LORENZ and MURRAY, JJ., concur.


Following a joint bench trial, defendants, Leslie and Wilbur Bennett, were convicted of residential burglary and each was sentenced to a term of four years. On appeal, both defendants contend that due to a conflict in their interests their joint representation by a single attorney resulted in the denial of their sixth amendment right to effective assistance of counsel. Leslie correlatively contends that by reason of the joint representation he was also deprived of his constitutional right to cross-examine Wilbur regarding his post-arrest statement implicating them in the crime.

At trial, Reuben Chisholm testified that he was home alone in his first-floor bedroom on the morning of June 8, 1984, when, at approximately 10:45, the front doorbell rang. He looked out the dining room window next to the front door and saw Leslie standing at the door and Wilbur standing across the street. He did not open the door but, instead, returned to his room. A short while later, he heard the rear doorbell ring and after a few more seconds, the front bell rang again. A short while later, he heard someone kicking in the basement door, but he was unable to see anything from the top of the basement stairs. He immediately returned to his room and, as he was dressing, he heard the basement door break open. Armed with a bat, he descended the basement stairs and, as he reached the bottom, he saw Leslie running out of the back door. He ran out the basement door into the yard and began chasing Leslie, who was running across the street; but, on the suggestion of a neighbor, he finally stopped and called the police. When he returned home and examined the door, he saw that" the lock was busted off and a safety chain was broken." He had known defendants for about eight years, because they had all attended the same school. On cross-examination, Chisholm at first did not recall having testified at the preliminary hearing that he did not see anyone leave the house through the basement door; but on redirect examination, he explained that the point in time to which the question and his answer referred was when he was at the top of the basement stairs after first hearing the door being kicked in and that it was later, when he descended the stairs after putting his pants on, that he saw Leslie.

Chisholm's mother, Beatrice Chisholm, testified that when she and her daughter left the house through the rear door earlier that morning, it was locked and undamaged.

Chicago police detective Walter McWilliams testified that he and two other detectives arrested Wilbur at his home at 2:45 that afternoon, advised him of his rights, informed him that he had been seen running from the scene of a burglary and asked if he wished to speak to them. Wilbur then told them that Leslie had come to him and said he wanted them to break into the Chisholm house because no one was at home and there was a substantial amount of stereo equipment inside. They agreed that he would act as the lookout while Leslie went inside to remove the stereo equipment and that they would share equally in the proceeds of the burglary. Wilbur further stated that when they arrived at the house, Leslie first rang the front doorbell and then went around to the rear of the house. A few minutes later, Leslie came running from the rear and they both ran eastbound from the house.

Following the denial of defense counsel's motion for a finding that the State had failed to prove all material elements of the offense charged, Wilbur took the stand in his own behalf. He testified that on the date in question he was awakened by his mother at about 10 a.m. and left the house shortly thereafter to do some errands for her. He returned at about 10:30 a.m. and then immediately left again to visit a friend, at whose house he remained until noon, at which time he returned home after learning from another friend that Leslie had been arrested. In response to inquiries from defense counsel, he at first testified that he did not go to the Chisholm home on June 8; he then stated that he had been there with a girlfriend at about 11:30 a.m. to pick up her younger sister from school; but, upon further examination, he reiterated that he had not gone to the Chisholm home at any time on June 8. On cross-examination, Wilbur denied knowing or ever having seen Reuben Chisholm before, but acknowledged that Chisholm had attended the same school from which he had graduated. He also stated that McWilliams was not one of the two detectives who came to his house to arrest him or the detective who later questioned him. He denied making any statement while in custody, asserting that the alleged statement was fabricated by the officer who questioned him at the police station. According to Wilbur, Leslie was at home in bed when he left the house on the morning in question.

Leslie also testified that he was in bed when, at about 10:45 a.m., his mother hollered up toward his bedroom that someone was at the door to see him. When he came down the stairs, two police officers and Reuben Chisholm were already in the house. One officer asked him his name and then told him that he was under arrest for residential burglary. The other then ordered him to get dressed quickly, threatening to take him into custody in his pajamas. After the police handcuffed him, they asked Reuben Chisholm, "[Are] you sure this is the guy?" and then transported him to the police station. He testified that he had not gone to the Chisholm home at any time on the day of the burglary. On cross-examination, Leslie stated that he had attended school with Chisholm and knew where he lived and that although Wilbur also attended that school, he was in a different class and never knew Chisholm.

Following argument by counsel, the trial court found defendants guilty and, after a subsequent hearing, denied defense counsel's post-trial motion to vacate the judgment and/or grant a new trial and sentenced each of them to the statutorily prescribed minimum term of four years' imprisonment. This appeal followed.


It is the State's position that defendants have waived the issues presented in this appeal by failing to raise them at trial or in a post-trial motion. It is true that as a general rule, errors not brought to the attention of the trial court are deemed waived for purposes of review (People v. Caballero (1984), 102 Ill. 2d 23, 464 N.E.2d 223); however, because strict adherence thereto would frequently result in defendants being precluded from raising claims of ineffective assistance of counsel by reason of the inaction of the very attorney whose performance is the basis thereof (see People v. Martinez (1982), 104 Ill. App. 3d 990, 433 N.E.2d 981), courts have recognized an exception to the general rule where a defendant alleges that a conflict of interest has resulted in a deprivation of effective representation and there has been no post-trial review of the case by independent counsel (People v. Ross (1985), 138 Ill. App. 3d 1089, 487 N.E.2d 68; People v. Bainter (1981), 102 Ill. App. 3d 1029, 430 N.E.2d 721). This exception comports with the plain-error doctrine embodied in Supreme Court Rule 615(a) (87 Ill. 2d R. 615(a)), which permits a reviewing court to consider allegations of errors raised for the first time on appeal if they involve rights so substantial that defendant may have been prevented from receiving a fair trial. ...

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